Non-Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 6145 OF 2009
(Arising out of SLP (c) No. 20304/2007)
Arjunan .. Appellant
Versus
M/s. Universal Fertilizer Corporation ..Respondent
JUDGMENT
R.M. Lodha, J.
Leave granted.
2. The short question that falls for consideration in this
appeal by special leave is: whether the High Court was
justified in dismissing the miscellaneous petition filed by the
applicant for extension of time in depositing the arrears of rent?
3. Bereft of unnecessary details, suffice it to say that in
the petition filed by the respondent (landlord) under section
10(2)(1) of the Tamil Nadu Buildings (Lease and Control) Act,
1960 (for short , `Act 1960′) seeking eviction of the appellant
(tenant) on the ground of wilful default by not paying rent from
March 1, 1997 till June 30, 2001 at the rate of Rs.400/- per, an
ex-parte order of eviction against the appellant was passed by
the Rent Controller, Salem on April 7, 2004.
4. The tenant filed a petition before the Rent
Controller, Salem, on April 19, 2004, for setting aside the ex-
parte order of eviction. He stated in the petition that the
original rent control petition was posted on April 7, 2004 for
cross-examination of the landlord but as he (tenant) was unwell
and could not appear before the court and instruct his counsel
for cross-examination, an ex-parte order came to be passed
against him. He stated that his non-appearance was not
wanton.
5. The landlord contested the petition for setting aside
the ex-parte order of eviction on diverse grounds. Inter-alia, he
stated that reasons set forth in the affidavit were false and
whole intention of the tenant is to protract the proceedings.
6. The Rent Controller heard the parties and in his
order dated July 5, 2004 referred to the proceedings to indicate
that earlier also for want of appearance an ex-parte order of
eviction was passed which was set aside on the application
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made by the tenant. The Rent Controller also noticed the
various dates on which the tenant sought adjournment. This is
what the Rent Controller observed:
“……….The perusal of the Court’s notes paper
reveals that the P.W.1 was examined on 24.9.2003 in chief.
Then the said Rent Control Original Petition was adjourned
for cross of P.W.1 on 30.9.2003, 6.10.2003, 9.10.2003 and
on 14.10.2003. For all these hearings the petitioner who is
the respondent in the main R.C.O.P. had not chosen to
cross examine the P.W.1 Finally on 14.10.2003 the
petitioner’s counsel had endorsed no instruction and hence
an exparte order was passed in favour of the present
petitioner in the main R.C.O.P. Then, later on the present
applicant had filed an application of similar kind vide
I.A.No.253/2003 and got it allowed. So on having been
allowed I.A.No.253/2003, this Court had posted the main
Rent Control Original Petition for cross of P.W.1 on
1.3.2004. Again from 1.3.2004, the case was posted to
8.3.2004 and then to 18.3.2004 for cross of P.W.1. From
18.3.2004 the case was adjourned to 25.3.2004. From
25.3.2004 again the case adjourned to 2.4.2004 for cross of
P.W.1 as no further adjournment. Again on 2.4.2004 this
Court in the interest of justice had adjourned the cross of
P.W.1 to 7.4.2004 as no further adjournment, for the second
time. On 7.4.2004 the present petitioner had not chosen to
appear before the Court………”
7. The Rent Controller although found that petition was
without any substance, but in the interest of justice allowed the
petition on the tenant’s depositing arrears of rent to the tune of
Rs.34,400/- pertaining to the period March 1997 to May 31, 2004
within 15 days from the date of the order.
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8. The tenant challenged the order dated July 5, 2004 in
appeal before the Rent Control Appellate Authority, Salem. The Rent
Control Appellate Authority heard the parties and vide its order dated
February 19, 2007 dismissed the appeal observing thus:
“……..Further till date, the appellant has not deposited the
arrears of rent of Rs.34,400/- as ordered by the Rent
Controller. The non compliance of the order of the Rent
Controller would show the attitude of the appellant herein.
Therefore, the order of the Rent Controller is sustainable one
and no infirmity found in its order, hence, the order deserves
to be confirmed by dismissing the present appeal…….”
9. The tenant then approached the High Court of
Judicature at Madras by filing a revision petition. The said revision
was dismissed by the High Court on April 19, 2007 and the order of
the Rent Control Appellate Authority was confirmed. It transpires that
the counsel for the tenant, then, prayed before the High Court for
some time to deposit the arrears of rent and taking note of that
submission, the High Court granted a week’s time to the tenant to
deposit the arrears of rent amounting to Rs.34,400/- with the Rent
Controller, Salem. It was further observed that upon depositing the
said amount, the Rent Controller would take up original rent control
petition for consideration.
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10. The tenant did not deposit the arrears of rent amounting
to Rs.34,400/- within a week as was observed in the order dated April
19, 2007 by the High Court. Later on, the tenant filed a petition
before the High Court for extension of time on the ground that due to
non-availability of certified copy of the order dated April 19, 2007, he
could not deposit the rent within the time granted by the court.
11. The High Court found no justification to show further
indulgence to the tenant and dismissed the petition for extension of
time on July 9, 2007 for the following reasons:
“(a) The petitioner has been directed to deposit the rent by
the learned Rent Controller in I.A.No.59 of 2004 in
R.C.O.P.No.41 of 2001. The petitioner without depositing
the rent, has filed R.C.A. No.21 of 2004 before the Appellate
Authority. The said R.C.A. was also dismissed. The
petitioner has preferred a Revision before this Court in
C.R.P.(NPD) No. 11876 of 2007. This Court by an order
dated 19.4.2007, directed the petitioner to deposit the rent
within one week from the date of the order. Without
depositing the said rent within one week as directed by this
court, the petitioner has come forward with the present
application for extension of time. In his affidavit, the
petitioner has pleaded that since the certified copy of the
order passed in CRP (NPD) No.11876 of 2007 has not been
furnished, he could not deposit the rent before the Rent
Controller. But, unfortunately, the petitioner has not filed any
document to show that he has made an attempt to deposit
the rent as ordered by this Court in time and that his request
for deposit has not been entertained by the office of the Rent
Controller, Salem.
(b) If really, the certified copy of the order is required for
depositing the rent before the Rent Controller, the petitioner
through his counsel should have requested this Court for
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grant of certified copy at the earliest so as to enable him to
deposit the rent within the time granted by this court. The
petitioner has not made any such request.
(c) Admittedly, the petitioner has obtained the certified copy
of the order in the revision during summer vacation. Even
after obtaining the certified copy, no attempt has been made
by the petitioner to deposit the rent till 4.6.2007.
(d) Even assuming that the office of the Rent Controller
(District Munsif), Salem refused to entertain the request of
the petitioner to deposit the rent, the petitioner should have
approached this Court in time seeking extension. But,
unfortunately, the petitioner has approached this Court only
on 14.6.2007 seeking extension of time.
(e) Furthermore, it has to be seen that a sum of Rs.34,400/-
is the rental arrears from 1.3.1997 to 31.5.2004. There is
still arrears of rent subsequent to that.”
12. It is from this order that the present appeal by special
leave arises.
13. On November 12, 2007, this Court issued notice to the
respondent subject to the condition that the appellant deposits a sum
of Rs. 34,400/- as directed by the High Court with the Rent Controller,
Salem within a week therefrom.
14. That the appellant has deposited a sum of Rs.34,400/-
within time granted by this Court in the order dated November 12,
2007 is not in dispute. However, the learned counsel for the
respondent strenuously urged that fair rent of the premises having
been determined at the rate of Rs.5,250/- per month with effect from
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August 1, 2001, there is shortfall in payment of rent to the tune of
Rs.4,46,250/- from August 1, 2001 to August 31, 2008. He relied
upon Section 11 (4) of the Act, 1960 in this regard and submitted
that the appellant is not entitled to any indulgence from this Court in
appeal under Article 136 of the Constitution.
15. On the other hand, learned senior counsel for the
appellant submitted that the order fixing fair rent at the rate of
Rs.5,250/- per month payable from August 1, 2001 has been
challenged by the appellant before the High Court and the revision
petition is pending.
16. In the present appeal, it is not necessary for us to go into
the aspect of non-payment of rent at the rate of fair rent as it is clear
that matter pertaining thereto is sub-judice before the High Court
and has not attained finality. In the absence of any interim order
passed by the High Court staying the operation of the order fixing the
fair rent at Rs.5,250/- per month, if the tenant is not depositing the
fair rent; he must be doing so at his own risk. We leave the matter at
that. Suffice, however, to say that in the original petition for eviction,
the landlord has averred that the monthly rent of the subject
premises is Rs.400/- and that the tenant has committed wilful default
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in paying the rent from March 1, 1997 at the rate of Rs.400/- per
month. The quantification of arrears of rent to the tune of
Rs.34,400/- from March 1, 1997 to May 31, 2004 is founded on the
said averment. Although the conduct of the tenant is contumacious
and far from satisfactory in so far as payment/deposit of rent is
concerned and the view of High Court cannot be said to be totally
unjustified but now since the amount of Rs.34,400/- for the
aforesaid period has been deposited by the appellant as per the
order dated November 12, 2007, in the interest of justice, we direct
that the time granted by the High Court in its order dated April 19,
2007 for deposit of the amount of Rs.34,400/- shall be deemed to
have been extended upto the date he deposited the said amount.
17. Consequently, appeal is allowed to the aforesaid extent.
The Rent Controller, Salem shall now take up Rent Control Original
Petition No.41/2001 and hear and decide the same as expeditiously
as may be possible. The parties will bear their own costs.
……………………J
(Tarun Chatterjee)
…………………..J
(R.M. Lodha)
New Delhi,
September 9, 2009
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